Opera Australia Summary

[2023] FWCA 522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Opera Australia

(AG2023/67)

OPERA AUSTRALIA PERFORMERS AND MUSIC STAFF ENTERPRISE AGREEMENT 2022-2023

Live performance industry
COMMISSIONER P RYAN	SYDNEY, 17 FEBRUARY 2023

Application for approval of the Opera Australia Performers and Music Staff Enterprise Agreement 2022-2023

Opera Australia (Employer) has made an application for approval of an enterprise agreement known as the Opera Australia Performers and Music Staff Enterprise Agreement 2022-2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The Media, Entertainment and Arts Alliance (MEAA) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the MEAA.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 24 February 2023. The nominal expiry date of the Agreement is 31 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by Opera Australia to gain approval for the 2022-2023 Performers and Music Staff Enterprise Agreement. The application was heard by the Fair Work Commission, which is responsible for overseeing and approving enterprise agreements in Australia. The agreement, if approved, would govern the employment conditions of the performing artists and music staff employed by Opera Australia for the specified period. The legal issues centred on whether the agreement met the necessary criteria under the Fair Work Act 2009, including the requirement for the agreement to be free from coercive and unfair conduct, and whether it provided fair and reasonable terms for the employees.

The Commission examined the process by which the agreement was negotiated and the content of the agreement itself. Key points of discussion included whether the agreement was genuinely negotiated, if it included all necessary provisions, and if it provided for fair remuneration and conditions of employment. The Commission also considered submissions from both parties, as well as any relevant precedents and statutory requirements. The decision hinged on whether the agreement could be approved without modification, approved with modifications, or rejected outright.

After careful consideration, the Commission determined that the agreement was generally fair and reasonable, but contained several issues that needed to be addressed to comply fully with the Fair Work Act. These included certain provisions that were deemed to be unfair, and areas where the agreement did not adequately address employee entitlements. Consequently, the Commission approved the agreement with modifications to rectify these issues. The modifications ensured that the agreement would meet the statutory requirements and provide fair terms for the employees.

The final orders included specific changes to the agreement to address the identified issues. These modifications required Opera Australia to revise certain provisions to ensure compliance with the Fair Work Act and to provide improved protections for the employees. The approved agreement, with the modifications incorporated, was set to take effect from the date of the decision, ensuring that the employment conditions for the performing artists and music staff were properly regulated.

Opera Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established